POWER OF ATTORNEY
>>Disclaimer!<<
- The information on this site is general in nature and may not apply to a specific problem.
- The forms on this site are some the author has found useful in his practice; even if the laws of Virginia are uniform, practice from one area to another (and one judge to another) varies. And forget any relationship to the laws of any other state.
- Therefore, reliance on any information posted here, and the use of ANY form (or other document on this site) is at the sole risk and responsibility of the user, and in no way creates or implies an attorney client relationship with the author, his firm, staff, family or even his dog.
- And isn't it silly that we have to cover our *(&%$ with disclaimers in case some fool wants to blame me when they screw up?
- Oh, using this site means you agree with the above.
A Power of Attorney creates a fiduciary relationship. Simply, that's where one person has a duty to do what is in the best interest of the other (which is not always the same as what that person wants)
Giving someone power of attorney does NOT 'take away' any powers the principal has; all a power of attorney does is create a 'legal clone' of the original person.
Unfortunately, almost no one teaches you how to use the thing, a lack I believe will soon be malpractice by the lawyer. On this page are instructions Hart & Hart Attorneys Ltd. gives clients when a power of attorney is prepared. Occasionally someone wants an "alive and well" affidavit, which states that the principal (person who gave power of attorney) is still alive and that the power of attorney is still in force. Powers of Attorney from this office have the form for affidavit included.
A Power of Attorney costs $200 or less to draft. A Guardianship/Conservatorship costs $3500.00 if it isn't complicated, look out if it is (I remember one with a total cost of $90,000.00 after 5 lawyers got through with it)
==================================
General comments about a power of attorney:
Get multiple originals signed if you can, although one is enough. There may be occasions that someone will require you to leave an original (the odds of getting it back are not good) or it may get lost or destroyed accidentally. Backups are good. If anyone wants to keep an original, point to the very last paragraph which specifically states that a copy is just as good as an original.
Suggestion: if you only have one Original power of attorney, take it AT ONCE to the Clerk of the Circuit Court (in Virginia; in other states probably where deeds or wills are recorded), and record it. That way, if you lose the original, a copy certified by the Clerk as being from her/his records will usually work in its place.
Some Power of Attorney forms provide for a 'specimen signature' by the agent, although it is not notarized. It's simply a safeguard, kind of like a bank signature card.
The power of attorney must be "Notarized", that is, a Notary Public must sign and certify that it was signed by the grantor. THE NOTARY'S SEAL MUST ALSO BE PUT ON THE DOCUMENT.
KEEP ALL MONEY AND PROPERTY SEPARATE - DO NOT CO-MINGLE THEIR MONEY WITH YOURS.
Finally, below is a "FAQ" sheet with some general information regarding powers of attorney, together with some rules that apply to Fiduciaries acting under a power of attorney. Feel free to contact us with any questions.
=========================
POWER OF ATTORNEY FAQ'S
We receive a number of questions about the use and legality of a power of attorney. Here are some of the most common questions we get, together with the answers.
WHAT IS A POWER OF ATTORNEY?
A power of attorney is a written, legally binding, appointment or authorization whereby one person names and gives legal authority to another to act on their behalf. The giver of the power of attorney is frequently called the "Principal" and the person to whom the power is given is called the "agent", "attorney in fact" or sometimes "attorney". A person appointed agent under a power of attorney is a "fiduciary" and must follow fiduciary rules in handling property.
WHO CAN BE GIVEN POWER OF ATTORNEY?
Generally, anyone can be given a power of attorney The person named as agent does NOT have to be a lawyer.
IS COURT SUPERVISION REQUIRED?
The law does not require Court supervision, however the agent may be required a detailed account of all property, receipts and expenses. Keep careful records be kept of everything that is done for the principal so that if there are any questions, the answers are obtainable. A small notebook (the size of a shorthand pad) used as a diary is an excellent way to record everything that is done.
PLEASE SEE THE TOP RULES FOR FIDICIARIES, BELOW.
WHAT CAN "THE ATTORNEY" DO?
The attorney-in-fact can do only those things listed in the document naming them an attorney-in-fact. A general power of attorney allows the holder to do everything (with certain exceptions, such as writing a will) that the principal could do. A limited power of attorney sets out certain limited things that the holder can do, such as sell a certain piece of real estate, etc.
HOW DO I SIGN?
This is one of the more confusing parts of using a power of attorney. Generally, a document is signed as follows: (Where John Doe named Bill Smith power of attorney):
JOHN DOE
By: Bill Smith
His Attorney-in-fact
In this example, Bill Smith has signed HIS name; John Doe's name is typed or printed.
HOW LONG IS IT VALID?
A power of attorney is good until it is revoked or until the Principal (person giving the power) becomes disabled or dies, unless there is some limitation on the time specified in the document granting the power. Many powers-of-attorney provide that if the principal becomes disabled, the power granted continues in force (this is called a "Durable Power of Attorney").
WHO NEEDS TO SEE IT?
Anyone who has property or funds of the principal such as a bank or stockbroker. Also, if the agent is handling real estate for the principal, the power of attorney will have to be recorded the same place as the deed to that real estate. Most of the time one can show the original and leave a photocopy.
LIMITATIONS & GOVERNING LAW
These comments are based on the laws of the Commonwealth of Virginia. Other states may be different. If you have any other questions about how or when to use a power of attorney, please contact Hart & Hart Attorneys, LTD and we will gladly answer your questions.
===============================
TOP RULES FOR FIDUCIARIES UNDER POWER OF ATTORNEY:
As a person acting under a Power of Attorney, you are considered by the law to be a Fiduciary. Below are some important rules you need to follow as you fulfill your duties; these aren't the only rules but are the more important ones.
Giving someone power of attorney does NOT 'take away' any powers the principal has; all a power of attorney does is create a 'legal clone' of the original person.
Unfortunately, almost no one teaches you how to use the thing, a lack I believe will soon be malpractice by the lawyer. On this page are instructions Hart & Hart Attorneys Ltd. gives clients when a power of attorney is prepared. Occasionally someone wants an "alive and well" affidavit, which states that the principal (person who gave power of attorney) is still alive and that the power of attorney is still in force. Powers of Attorney from this office have the form for affidavit included.
A Power of Attorney costs $200 or less to draft. A Guardianship/Conservatorship costs $3500.00 if it isn't complicated, look out if it is (I remember one with a total cost of $90,000.00 after 5 lawyers got through with it)
==================================
General comments about a power of attorney:
Get multiple originals signed if you can, although one is enough. There may be occasions that someone will require you to leave an original (the odds of getting it back are not good) or it may get lost or destroyed accidentally. Backups are good. If anyone wants to keep an original, point to the very last paragraph which specifically states that a copy is just as good as an original.
Suggestion: if you only have one Original power of attorney, take it AT ONCE to the Clerk of the Circuit Court (in Virginia; in other states probably where deeds or wills are recorded), and record it. That way, if you lose the original, a copy certified by the Clerk as being from her/his records will usually work in its place.
Some Power of Attorney forms provide for a 'specimen signature' by the agent, although it is not notarized. It's simply a safeguard, kind of like a bank signature card.
The power of attorney must be "Notarized", that is, a Notary Public must sign and certify that it was signed by the grantor. THE NOTARY'S SEAL MUST ALSO BE PUT ON THE DOCUMENT.
KEEP ALL MONEY AND PROPERTY SEPARATE - DO NOT CO-MINGLE THEIR MONEY WITH YOURS.
Finally, below is a "FAQ" sheet with some general information regarding powers of attorney, together with some rules that apply to Fiduciaries acting under a power of attorney. Feel free to contact us with any questions.
=========================
POWER OF ATTORNEY FAQ'S
We receive a number of questions about the use and legality of a power of attorney. Here are some of the most common questions we get, together with the answers.
WHAT IS A POWER OF ATTORNEY?
A power of attorney is a written, legally binding, appointment or authorization whereby one person names and gives legal authority to another to act on their behalf. The giver of the power of attorney is frequently called the "Principal" and the person to whom the power is given is called the "agent", "attorney in fact" or sometimes "attorney". A person appointed agent under a power of attorney is a "fiduciary" and must follow fiduciary rules in handling property.
WHO CAN BE GIVEN POWER OF ATTORNEY?
Generally, anyone can be given a power of attorney The person named as agent does NOT have to be a lawyer.
IS COURT SUPERVISION REQUIRED?
The law does not require Court supervision, however the agent may be required a detailed account of all property, receipts and expenses. Keep careful records be kept of everything that is done for the principal so that if there are any questions, the answers are obtainable. A small notebook (the size of a shorthand pad) used as a diary is an excellent way to record everything that is done.
PLEASE SEE THE TOP RULES FOR FIDICIARIES, BELOW.
WHAT CAN "THE ATTORNEY" DO?
The attorney-in-fact can do only those things listed in the document naming them an attorney-in-fact. A general power of attorney allows the holder to do everything (with certain exceptions, such as writing a will) that the principal could do. A limited power of attorney sets out certain limited things that the holder can do, such as sell a certain piece of real estate, etc.
HOW DO I SIGN?
This is one of the more confusing parts of using a power of attorney. Generally, a document is signed as follows: (Where John Doe named Bill Smith power of attorney):
JOHN DOE
By: Bill Smith
His Attorney-in-fact
In this example, Bill Smith has signed HIS name; John Doe's name is typed or printed.
HOW LONG IS IT VALID?
A power of attorney is good until it is revoked or until the Principal (person giving the power) becomes disabled or dies, unless there is some limitation on the time specified in the document granting the power. Many powers-of-attorney provide that if the principal becomes disabled, the power granted continues in force (this is called a "Durable Power of Attorney").
WHO NEEDS TO SEE IT?
Anyone who has property or funds of the principal such as a bank or stockbroker. Also, if the agent is handling real estate for the principal, the power of attorney will have to be recorded the same place as the deed to that real estate. Most of the time one can show the original and leave a photocopy.
LIMITATIONS & GOVERNING LAW
These comments are based on the laws of the Commonwealth of Virginia. Other states may be different. If you have any other questions about how or when to use a power of attorney, please contact Hart & Hart Attorneys, LTD and we will gladly answer your questions.
===============================
TOP RULES FOR FIDUCIARIES UNDER POWER OF ATTORNEY:
As a person acting under a Power of Attorney, you are considered by the law to be a Fiduciary. Below are some important rules you need to follow as you fulfill your duties; these aren't the only rules but are the more important ones.
- KEEP MONEY SEPARATE - DO NOT deposit any fiduciary money in your personal account. DO NOT put personal money in the fiduciary account. NEVER use fiduciary money to pay your personal bills - Criminal penalties could happen if you do. Open a special account at a bank for all fiduciary funds.
- GET CANCELLED CHECKS OR THEIR IMAGES FROM THE BANK - Virginia law allows certain parties to demand an "Accounting" which is a detailed statement of everything that you got and paid on behalf of your "principal". You may have to prove that someone actually received the money you say you paid. Get paper statements with the check images and keep them in a safe place. If the bank says it can't do this, go to another bank. If you don't get the check images, then at your personal expense you'll have to get other proof that can be approved by the Court if it gets involved.
- CAREFULLY DETAIL ALL MONEY that comes in or goes out. For EACH item, you need to write down WHEN - WHO - WHAT/WHY - HOW MUCH. Example: If you get a $200.00 check from an insurance company, you need the WHEN (date you got it), WHO (name of insurance company) WHAT/WHY (payment on medical treatment or refund on premium) and HOW MUCH (the exact amount of the check). If you can, photocopy all checks before depositing them in the bank.
- KEEP RECORDS - Get a medium sized spiral notebook for a diary. In it write everything you do in handling the estate - who you talk to, what was said, what was done. For money, the checkbook register MUST be accurate. (Hint: Put money transactions in BOTH the notebook AND the checkbook register).
- GET RECEIPTS. If you give someone personal property, you may have to prove that they actually got it AND what it was worth. A receipt is the best way to do this.
- DON'T PAY BILLS AND DEBTS TOO QUICKLY. If there's not enough money available, you can be personally responsible if you overpaid creditors. THIS INCLUDES THE FUNERAL BILL if the person dies. There are laws that say who is entitled to what payment when, and if you think there may not be enough money to pay everything, consult an attorney.
- ASK QUESTIONS. There are strict and detailed rules for handling someone else's money; few people have experience doing it. Find a lawyer experienced in this area and use him/her as a resource. Asking a stupid question is a lot cheaper than making a stupid mistake.
- TAKE CARE OF TAXES. You may be responsible for making sure all tax returns are filed and taxes paid on time. If you're not sure what to do, get an accountant to help you.
- USE A COMPUTER (if you have access to one) to keep track of all receipts and expenses. Our office uses Quicken (tm) on a daily basis and we recommend it; there are other programs that do as good a job.
